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STATE OF OKLAHOMA
2nd Session of the 59th Legislature (2024)
SENATE BILL 1813 By: Paxton
AS INTRODUCED
An Act relating to insurance claims; defining terms;
providing application of act; requiring compliance
with act by insurer; providing f or certain payments
for noncompliance by insurer; construing provision;
requiring Insurance Commissioner to determine
postjudgment interest rate monthly; requiring p osting
of rate on Insurance Department website; setting
postjudgment rates; providing date of accrual for
interest awarded as damages; requiring presuit notice
by claimant or representative of claimant prior to
filing certain action; stating requirements of
notice; stating exemptions from presuit notice;
requiring court to dismiss certain claims under
certain circumstances; providing for admissibility of
presuit notice in civil action or alternative dispute
resolution; authorizing inspection of property damage
at issue upon written notice; providing procedure for
inspection; authorizing filing of plea in abatement
under certain circumstances; authorizing court to
abate an action upon certain findings; providing for
automatic abatement without court order under certain
circumstances; providing requirements of affidavit by
claimant controverting fai lure to provide presuit
notice; providing for specified duration of
abatement; prohibiting court from compelling
alternative dispute resolution during abatement
period; authorizing insurer to make election to
accept liability of producer; providing for dis missal
of action against producer under certain
circumstances; requiring insure r to make producer
available for deposition under c ertain circumstances;
stating exception; stating exception to dismissing
suit against producer; prohibiting revocation by
insurer or nullification by court of election by
insurer for producer liability; providing for
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admissibility of certain evidence against producer
under certain circumstances; prov iding admissibility
of evidence for this act to supersede civil procedure
provisions when conflict exists; prohibiting election
of producer liability by insurer if insurer is in
receivership; prohibiting making jur y aware of
election by insurer; providing for determination of
amount of attorney fees as determined by trier of
fact; stating exception for award of attorney fees;
setting time of filing pleadings under this act;
providing for codification; and providing an
effective date.
BE IT ENACTED BY THE PEOPLE OF THE STATE O F OKLAHOMA:
SECTION 1. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 1231 of Title 36, unless there
is created a duplication in numbering, reads as follows:
A. As used in this sect ion:
1. “Claim” means a first-party claim that:
a. is made by an insured under an insurance policy
providing coverage for real property or improvements
to real property,
b. must be paid by the insurer directly to the insured ,
and
c. arises from damage to or loss of covere d property
caused, wholly or partly, by forces of nature,
including an earthquake or earth tremor, a wildfire, a
flood, a tornado, lightning, a hurricane, hail, wind,
a snowstorm, or a rainstorm ;
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2. “Claimant” means a claimant as defined pursuant to Section
1250.2 of Title 36 of the Oklahoma Statutes;
3. “Insurance adjuster” or “adjuster” means an insurance
adjuster as defined pursuant to Section 6 202 of Title 36 of the
Oklahoma Statutes;
4. “Insurer” means a corporation, association, partnership, or
individual engaged as a principal in the business of insurance and
authorized or eligible to write property insurance in this state,
including:
a. an insurance company ,
b. a reciprocal or interinsurance exchange ,
c. a mutual insurance company ,
d. a capital stock insurance company ,
e. a county mutual insuranc e company,
f. a farm mutual insurance company ,
g. a Lloyd’s plan, or
h. an eligible surplus li nes insurer; and
5. “Insurance producer” or “producer” means an insurance
producer as defined pursuant to Section 1435.2 of Title 36 of the
Oklahoma Statutes.
SECTION 2. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 1232 of Title 36, unless there
is created a duplication in numbering, reads as follows:
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A. The provisions of this act shall apply to an action on a
claim against an insurer , producer, or adjuster , including:
1. An action alleging a breach of contract;
2. An action alleging negligence, misrepresentation, fraud, or
breach of a common law duty; or
3. An action brought under the Unfair Claims Settlement
Practices Act.
B. Except as provided in subsection C of this section, if an
insurer liable for a claim is not in compliance with this act, the
insurer shall pay the holder of the policy or the beneficiary making
the claim under the policy interest on the amount of the claim at
the rate of eighteen percen t (18%) a year as damages, together with
reasonable attorney fees, in addition to the claim. Nothing in this
section shall prevent the award of prejudgment interest on the
amount of the claim as pr ovided by law.
C. In an action constituting an unfair claim settlement
practice, if an insurer of an insurance policy is not in compliance
with this act, the insurer shall pay the holder of the policy, in
addition to the claim, reasonable attorney fees, a nd simple interest
on the amount of the claim as damages ea ch year at the rate
determined on the date of judg ment by adding five percent (5%) to
the interest rate determined in subsection D of this section.
D. 1. On the fifteenth day of each month, the I nsurance
Commissioner shall determine the postjudgment interest rate to be
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applied to a money judgment rendered during the succeeding calendar
month. The Insurance Department shall publish the determined rate
on the website of the Department.
2. The postjudgment interest rate is:
a. the prime rate as published by th e Board of Governors
of the Federal Reserve System on the date of
computation,
b. five percent (5%) a year if the prime rate as
published by the Board of Governors of the Federal
Reserve System described by subparagraph a is less
than five percent (5%), or
c. fifteen percent (15%) a year if the prime rate as
published by the Board of Governors of the Federal
Reserve System described by subparagraph a is more
than fifteen percent (15%).
Nothing in this section shall prevent the award of prejudgment
interest on the amount of the claim as provided by law. Interest
awarded under this section as damages shall accrue beginning on the
date the claim was required to be paid.
SECTION 3. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 1233 of Title 36, unless there
is created a duplication in numbering, reads as follows:
A. In addition to any other notice required by law or the
applicable insurance p olicy, not later than the sixty-first day
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before the date a cla imant files an action seeking damages from any
insurer, the claimant shall give written notice to the insurer in
accordance with this section a s a prerequisite to filin g an action
pursuant to this act.
B. Notice required under this section shall provide:
1. A statement of the acts or omissions giving rise to the
claim;
2. The specific amount alleged to be owed by the insurer on the
claim for damage to or loss of covered property; and
3. Reasonable attorney fees.
C. If an attorney or other representativ e provides notice under
this section on behalf of a claimant, the attorney or representative
shall:
1. Provide a copy of the notice to the cla imant; and
2. Include in the notice a statement t hat a copy of the notice
was provided to the claimant.
D. Presuit notice required under this section is not required
if giving notice is impracticable and:
1. The claimant has a reasonable belief that there is
insufficient time to give presuit notice before the statute of
limitations will expire; or
2. The action is asserted as a counterclaim.
E. To ensure that a claimant is not prejudiced by having given
the presuit notice required by this section, a court shall dismiss
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without prejudice an action rela ting to the claim for which notice
is given by the claimant and commenced:
1. Before the sixty-first day after the date the claimant
provides presuit notice under subsection A of this section;
2. By an insurer to whom presuit notice is given under
subsection A of this section; and
3. Against the claimant giving the notice.
F. A claimant who gives notice in accordance with this section
is not relieved of the obligation to give notice under any other
applicable law. Notice given pursuant to this section may be
combined with notice given under any other law.
G. Notice given pursuant to this section is admissible in
evidence in a civil action or an alternative dispute resolution
proceeding.
H. Giving notice pursuant to this section shall not provide a
basis for limiting the evidence of attorney fees, damages, or losses
a claimant may offer at trial.
I. An insurer who receives notice pursuant to this section may
make a settlement offer during a period begin ning the date notice is
received and ending on the sixtieth day following the receipt date.
SECTION 4. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 1234 of Title 36, unless there
is created a duplication in numbering, reads as follows:
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Not later than the thirtieth day after receiving a presuit
notice given under Section 3 of this act, an insurer to whom notice
is given may send a written request to the claimant to inspect,
photograph, or evaluate, i n a reasonable manner and at a reasonable
time, the property that is the subject of the claim. If reasonably
possible, the inspection, photography, or evaluation must be
completed not later than the sixtieth day after the date the insurer
receives the presuit notice.
SECTION 5. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 1235 of Title 36, unless there
is created a duplication in numbering, reads as follows:
A. In addition to taking any other act allowed by contract or
by any other law, an insurer against whom an action to which this
act applies is pending may file a plea i n abatement not later than
the thirtieth day after the date the insurer files an original
answer in the court in which the action is pending if the insurer:
1. Did not receive a presuit notice complying with Secti on 3 of
this act; or
2. Completed a request pursuant to Section 4 of this act but
was not provided a reasonable opportunity to insp ect, photograph, or
evaluate the property that is the subject of the claim.
B. The court shall abate the action if the court finds that the
insurer filing the plea in abatement:
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1. Did not, for any reason, receive a presuit notice complying
with Section 3 of this act; or
2. Completed a request pursuant to Section 4 of this act but
was not provided a reasonable opportunity to inspect, photograph, or
evaluate the property that is the subject of the claim.
C. An action is automatically abated without a cou rt order
beginning on the eleventh day after the date a plea in abatement is
filed if the plea:
1. Is verified and alleges that the insurer against whom the
action is pending:
a. did not receive a presuit notice complying with
Section 3 of this act, or
b. completed a request under Section 4 of this act but
was not provided a reasonabl e opportunity to inspect,
photograph, or evaluate the property that is the
subject of the claim; and
2. Is not controverted by an affidavit filed by the claimant
before the eleventh day after the date the plea i n abatement is
filed.
D. An affidavit described b y paragraph 2 of subsection C of
this section controverting whether the insurer against whom the
action is pending received a presuit notice complying with Section 3
of this act shall:
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1. Include as an attachment a copy of the document the claimant
sent to give notice of the claimant ’s action; and
2. State the date on which the notice was given.
E. An abatement under this section continues until the later
of:
1. The sixtieth day after the date a notice c omplying with
Section 3 of this act is given; or
2. The fifteenth day after the date of the requested
inspection, photography, or evaluation of the property is completed
under Section 4 of this act.
F. If an action is abated under this section, a court may not
compel participation in an alternative disp ute resolution proceeding
until after the abatement period provided by subsection E of this
section has expired.
SECTION 6. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 1236 of Title 36, unless there
is created a duplication in numbering, reads as follows:
A. Except as provided by subsection H of this section , in an
action to which this act applies, an insurer that is a party to the
action may elect to accept whatever liability a producer or adjuster
might have to the claima nt for the acts or omissions of the producer
or adjuster related to the claim by providing written notice to the
claimant.
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B. If an insurer makes an election under subsection A of this
section before a claimant files an action t o which this act applies,
no cause of action exists against the producer or adjuster related
to the claim, and, if the claimant files an action ag ainst the
producer or adjuster, the court shall dismiss that action with
prejudice.
C. If a claimant files an action to which this act applies
against a producer or adjuster and the insurer thereafter makes an
election under subsection A of this section with respect to the
producer or adjuster , the court shall dis miss the action agains t the
producer or adjuster with prejudice.
D. If an insurer makes an election under subsection A of this
section and, after having been served with a notice of intent to
take a deposition of the producer or adjuster who is the subject of
the election, fails to make that producer or adjuster available at a
reasonable time and place to give deposition testimony, the
provisions of subsections A, B, and C of Section 7 of this act shall
not apply to the action with respect to which the ins urer made the
election unless the court finds that :
1. It is impracticable for the insurer to make the producer or
adjuster available due to a change in circumstances arising after
the insurer made the election under subsection A of this secti on;
2. The producer or adjuster whose liability was assumed w ould
not have been a proper party to the action; or
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3. Obtaining the producer or adjuster ’s deposition testimony is
not warranted under the law.
E. An election by an insurer under subsection A of this section
is ineffective to obtain the dismissal of an action against a
producer or adjuster if the election is conditioned in a way t hat
will result in the insurer avoiding liability for any claim -related
damage caused to the claimant by the acts or omissions of the
producer or adjuster .
F. An insurer may not revoke, and a court may not nullify, an
insurer’s election under subsection A of this section.
G. If an insurer makes an election under subsection A of this
section and the producer or adjuster is not a party to the action,
evidence of the acts or omissions of the producer or adjuster may be
offered at trial and, if supported by s ufficient evidence, the trier
of fact may be asked to resolve fact issues as if the producer or
adjuster were a defendant, and a judgment against the insurer must
include any liability that would have been assessed against the
producer or adjuster . To the extent that there is a conflict
between this subsection and Title 12 of the Oklahoma Statutes , this
subsection shall supersede the provisions of Title 12 of the
Oklahoma Statutes.
H. If an insurer is in receivership at the time the claimant
commences an action against the insurer, the insurer may not make an
election under subsection A of this section, and the court shall
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disregard any prior election made by the insurer relatin g to the
claim.
I. In an action tried by a jury, an insurer ’s election under
subsection A of this section may not be made known to the jury.
SECTION 7. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 1237 of Title 36, unless there
is created a duplication in numbering, reads as follows:
A. In an action pursuant to this act and e xcept as otherwise
provided by this section, the amount of attorney fees that may be
awarded to a claimant shall be the lesser of:
1. The amount of reasonable attorney fees supported at trial by
sufficient evidence and dete rmined by the trier of fact to have been
incurred by the claimant in bringing the action;
2. The amount of attorney fees that may be awarded to the
claimant under other applicable law; or
3. The amount calculated by:
a. dividing the amount to be awarded in the judgment to
the claimant for the claim under the insurance policy
for damage to or loss of covered property by the
amount alleged to be owed on the claim for that damage
or loss in a notice given under Section 3 of this act,
and
b. multiplying the amount calculated under subparagraph a
of this paragraph by the total amount of reasonable
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attorney fees supported at trial by sufficient
evidence and determined by the trier of fact to have
been incurred by the claimant in bringing the action.
B. Except as provided by subsection D of this section, the
court shall award to the claimant the full amount of reasonable
attorney fees supported at trial by sufficient evidence and
determined by the trier of fact to have been incurred by the
claimant in bringing th e action if the amount calculated under
subparagraph a of paragraph 3 of subsection A of this section is:
1. Greater than or e qual to 0.8;
2. Not limited by this section or any other provision of law;
and
3. Otherwise recoverable under law.
C. The court may not award attorney fees to the claimant if the
amount calculated under subparagraph a of paragraph 3 of subsection
A of this section is less than 0.2.
D. If a defendant in an action to which this act applies pleads
and proves that the defendant was entitled to but was not given a
presuit notice stating the specific amount alleged to be owed by the
insurer under Section 3 of this act at least sixty-one days before
the date the action was filed by the claimant, the court shall not
award to the claimant any a ttorney fees incurred after the date the
defendant files the pleading with the court. A pleading under this
subsection shall be filed not later than the thirtieth day after the
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date the defendant files an original answ er in the court where the
action is pending.
SECTION 8. This act shall become effective November 1, 2024.
59-2-3216 RD 1/17/2024 3:54:43 PM